Mutual hold harmless clauses in France and francophone civil law systems

Abstract

Although there is no general theory of risk in French law, the concept of risk occupies a central place in the French civil law tradition. According to its Latin etymology, the word ‘risk’ finds its origins in the idea of “shared risk between contracting parties”, suggesting the idea was conceived in a contractual setting. French law has also gradually introduced the concept of risk in matters of civil liability. Although long subordinated to the existence of fault, the principles of civil liability have expanded to the point of recognising ‘no fault’ liability, the idea being that where someone’s actions create a risk for third parties, the author of those actions should be liable for the harm caused. The abundance of topics linked to risk highlights the importance of its place in French civil law. In addition, technological development and the associated risks it has created have given rise to new challenges that need to be reflected in contractual relations. In this chapter we will focus on the analysis of the principle of contractual allocation of risk from a French civil law perspective and by extension other francophone civil law jurisdictions. More specifically, we will look at the acceptance within such legal systems of so-called mutual hold harmless clauses as a technique for contractually allocating risk.